When is Estrangement Disentitling Conduct?

When is Estrangement Disentitling Conduct?

By Daniel Fleming

November 08, 2017

The issue of what amounts to disentitling conduct in the case of an estranged parent and an adult child was recently discussed in Larkin v Leech-Larkin [2017] NSWSC 1418.

Wilma Leech-Larkin (“Wilma”) died in February 2015 at the age of 88.  Wilma had four surviving sons from her former marriage to Barnett Larkin.  In March 2013 Wilma made her final will in which left her entire estate to her second son.  The estate’s main asset was a property in the lower Blue Mountains which consisted of a house and an extensive French-style garden.

Wilma’s eldest son (Julian Larkin) brought a family provision claim against the estate.  Lucien Leech-Larkin, Wilma’s second son, was the defendant as the executor under the will.  Neither of Wilma’s other sons made a family provision claim against the estate.

Lucien and Wilma shared a close relationship with the mother and son living together in the family home until Wilma’s death and at the time of the hearing Lucien continued to reside in the house.  However, Julian did not share a similar relationship with Wilma having been estranged for some years.

Evidence in the proceedings demonstrated that the separation of Wilma and her former husband “was an exceptionally bitter one”.  In a previous will, Julian did not receive a benefit because Wilma perceived that he had “failed to stand by me and should not benefit in my will in any way whatsoever”.

It would appear that some of the antipathy in the relationship stemmed from Julian’s refusal to sever contact with his father after the separation (and subsequent divorce) and Julian had maintained his father’s surname unlike his siblings (who changed their name to Leech-Larkin).  Other than a couple of visits to the property and some letters sent by Wilma to Julian, there was not much contact between Julian and Wilma in the 40 years prior to her death.

Parker J noted that had Julian lived his whole adult life independently of the deceased.  Drawing on his discussion of authorities on provision for independent adult claimants in Kohari v NSW Trustee & Guardian (No 2) [2017] NSWSC 1080 at [83]-[85], Parker J noted that “the focus of the Court’s attention should be on ‘advancement’ rather than ‘maintenance’ or ‘education’”.

The question for the court in this case was “whether, having regard to all relevant factors, the deceased owed an obligation to provide in some way for him by way of advancement against his old age.”

Wilma’s decision to gift the whole of her estate to Lucien would appear to be consistent with a display of appreciation of the relationship she shared with Lucien and his involvement in the development of the property.

No matter what the opinion of Julian was towards Wilma and Wilma’s contribution to the estrangement, Parker J noted the fact that Julian had been estranged from Wilma for 40 or more years and considered this to be significant.  Wilma and Julian did not contribute to each other by way of emotional or financial support, whereas Lucien shared Wilma’s life and house during that time and assisted in the development of the property.

A serious issue facing Parker J was that if the property was to be divided between Lucien and Julian, there was a real risk that Lucien would be left with insufficient means to continue to live at the property or at least independently, which was intended by Wilma.

This foreseeable risk provided Parker J with “a justifiable basis for Wilma’s decision to give the whole of the estate to Lucien”, adding he was not satisfied “that the failure to make provision for Julian was not ‘proper’.”

The decision in Larkin v Leech-Larkin should send a warning to adult children who consider that they are entitled to receive a share of a deceased parent’s estate despite a long period of estrangement when the adult child did nothing to repair the relationship with their parent.

For more information contact Daniel Fleming on d.fleming@pigott.com.au or Meaghan Williamson on m.williamson@pigott.com.au.

 

This article is intended to provide general information in summary form on a legal topic, current at the time of publication.  The contents do not constitute legal advice and should not be relied on as such. Formal legal advice should be sought in specific circumstances.

Prepared by Meaghan Williamson.